Cyber Crime

 

ABSTRACT

With ith the the adv adven entt of the the new tech techn nolo ologies gies and and th thee ad adv van ance ceme ment nt in th thee mod odee of  communications, the Internet has become a new form of life. The Internet is has become the fastest mode of communication and has spread its sphere, covering all possible shades of  mankind. mank ind. It has become become not only a part of life but life in itself. It's an old saying that all the goods things bring some darkness within itself. The same is true with the computers, the Internet and with the technologies also. The advent of the computer has been a boon to students, lawyers, businessmen, teachers, doctors, researchers and also to the criminals

 

INTRODUCTION With ith the the adv adven entt of the the new tech techn nolo ologies gies and and th thee ad adv van ance ceme ment nt in th thee mod odee of  communications, the Internet has become a new form of life. The Internet is has become the fastest mode of communication and has spread its sphere, covering all possible shades of  mankind. mank ind. It has become become not only a part of life but life in itself. It's an old saying that all the goods things bring some darkness within itself. The same is true with the computers, the Internet and with the technologies also. The advent of the computer has been a boon to students, lawyers, businessmen, teachers, doctors, researchers and also to the criminals. DEFINITION OF “CRIME” The word 'crime' as strike to us to mean unauthorized access, damage to property, theft, fraud, mischief and the publication of obscene and indecent material etc. The expression crime is defined as an act, which subjects the doer to legal punishment or any offence against morality, social order or any unjust or shameful act. The Code of Criminal Procedure of India defines defin es the word offence offence to mean as an act or omission omission made punishable punishable by any law for the time being in force. CYBER CRIME  With the emergence of Internet, the traditional crimes have assumed new dimensions. The Information Technology Act has added a new word, cyber crimes, which covers various kinds of computer and Internet related crimes, which can be classified into the following heads: a) Hacking without any intention to commit any further offence or crime.

 

 b) Unauthorized access with intention to commit further offence. These can include theft, fraud, fra ud, mis-ap mis-appro propri priati ation, on, forger forgery, y, nuisan nuisance ce temper tempering ing with with source source code, code, publis publishin hing g of  information which is obscene in electronic form etc. c) Destruction of digital information through use of viruses. Hacking is a crime, which entails cracking systems and gaining unauthorized access to the data stored in them. Hacking generally is the pastime of computer experts, who do it only for  the kicks and excitement of it and may not intend to cause further harm or may not intend to  perpetrate further offences. Recently there have been certain incidents where the hacker has hacked into sites and added/posted malicious and indecent material on the site. The incidents most likely happen with the intention of mischief and causing damage by way of defamation etc rather than anything else. The menace of hacking has donned such immense proportions that some of the biggest companies in the world are finding it increasingly impossible to cope with them. The real tangible tangible threat threat of hacking comes in when an unautho unauthorized rized access to a system is do done ne wi with th th thee inte intent ntio ion n of co comm mmit itti ting ng fu furt rthe herr crime crimess like like frau fraud, d, misre misrepr pres esen enta tati tion on,, downloading data in order to commit infringement of copyright, accessing sensitive and top secret data from defence sites etc. Some of the most common types of fraud as committed on the net include bogus online investment newsletters, which give a biased and untrue advice on stock stockss an and d secur securit itie iess th ther ereb eby y fi fict ctio iona nall lly y givi giving ng a pu pull ll to th thee shar sharee va valu luee of bo bogu guss companies etc. Firstly, let us view the offence of hacking in terms of Indian Penal Code. The provision, which comes close to describing hacking, is criminal trespass. But to prove criminal trespass under section 441 of the IPC, the ingredients of unauthorized entry into or upon property against the will of the person in possession and/or lawfully obtained entry but wrongfully remaining thereon must be satisfied. In applying the section to hacking on the Internet, the prime question that needs to be answered is as to whether website is a property?. For this it is imperative to consider the computer or the virtual area of the net as a property . In order to do this we must consider the common jargon used to describe the world of Internet including site, home page, visiting a site and traveling on the super highway are just a few examples.

 

Thus,, as trespass Thus trespass actions are grounded grounded in the idea of protecting the owners control over real  property, there is no inherent reason as to why the owners control over a websites could not  be considered as species of property subject to trespass. It is for this reason that hacking is made a crime punishable under Section 66 (2) of the Information Technology Act, 2000  providing for an imprisonment imprisonment up to 3 years or with fine up to Rs. 2 lacs or with both. The next question of importance, which arises for consideration, is when a hacker has no intent int ention ion to commit commit any furthe furtherr crimes crimes after after having having trespas trespassed sed unauth unauthori orisedl sedly y into into the  property of other. The question is whether such hacking can be said to constitute intimidation or annoyance. To my mind, the answer to the question is in the affirmative as any person un unau auth thor orise isedl dly y en ente teri ring ng in into to yo your ur pr prop oper erty ty ca caus uses es an anno noya yanc ncee an and d may may re resu sult lt in into to intimidation. The offence of hacking, if committed with an intention of committing further offences, a  parallel for such offences can be drawn from the offences of theft, fraud, mis-appropriation, mis- appropriation, forgery, nuisance etc. If a person gains unauthorized access to the Property (website) of  another, breaching confidentiality of electronic documents, the same is punishable under  Section 72 of the I. T. Act punishable with an imprisonment up to 2 years or fine up to 1 lac or with both. Section 25 of the Indian Penal Code defines 'Fraudulently' as an action or deed done with an intention of deceit. The two main ingredients to be satisfied are 'Deceit' or an 'Intention to deceit' and either actual injury or possible injury or an intent to expose some person to actual or possible injury.

Internet fraud is a form of white-collar crime whose growth is as rapid and diverse as the growth of the Internet itself. In fact, the diversity of areas in which the Internet is being used to do fraud people and organization is astonishing. While there are innumerable scams and frauds going on, on the Internet, many of them relate to investments. They may be classified  broadly yet not comprehensively into the following categories:  Online Investment Newsletters: Hundreds of online investment newsletters have appeared on the Internet in recent years. Many offer investors seemingly unbiased information free of  charge cha rge about about feature featured d compan companies ies or recomm recommend ending ing,, ?stock ?stock picks picks of the month? month?.. While While legitimate online newsletters can help investors gather valuable information, some online newsletters are tools for fraud.

 

Bulletin Bulle tin Boards: Online Online bulletin boards whether whether newsgroups, newsgroups, usenet, or web-based-have web-based-have  become an increasingly popular forum for investors to share information. Bulletin boards typically feature threads made up of numerous messages on various investment opportunities.   E-mail E-mail Online Online Spams: Because spam-junk e-mail-is e-mail-is so cheap and easy to create, fraudsters fraudsters incre increasi asing ngly ly us usee it to fi find nd in inve vest stor orss fo forr bo bogu guss in inve vestm stmen entt sc sche heme mess or to sprea spread d fa false lse inform inf ormati ation on about about a compan company. y. Spam Spam all allows ows the un unscru scrupu pulou louss to target target many many po poten tentia tiall investors. Using a bulk email programme, spammers can send personalized messages to thousands and even millions of Internet users at a time.

These offences can be related, most conveniently, to the offences of fraud and cheating. Thirdly, let us view the menace of Viruses in the light of the provisions of the IPC. The offen offence ce of de deli libe berat ratel ely y an and d mala malafi fide dely ly de destr stroy oyin ing g or al alte teri ring ng th thee da data ta ba bases ses of al alie ien n computers may best be described as 'Mischief' as defined in sections 425 to 440 of the Indian Penal Code. The essential ingredients for the offence of Mischief being A wrongful loss or damage to the public or any person B intention to cause such damage or knowledge that such damage or loss might be caused. C destruction of property or such alteration to such property as may render it useless or  diminishes its value and/or utility. amply cover and describes the commission of the offence of destruction of digital data. Viruses are self-replicating programs, which on entering a system attach themselves to the digital data of the host computer, thereby destroying and/or altering it and/or rendering it  beyond comprehension and making it useless. Computer viruses transfer from computer to computer by disguising itself as a harmless E-mail or any other such thing thereby infecting and destroying the data of the recipient computer as well. The menace of computer viruses has reached the stage of being an incurable disease. On an average a million computer viruses are are ge gene nera rated ted ev ever ery y ye year ar.. Mu Mult ltin inati ation onal al co comp mpan anie iess an and d some some of th thee to top p go gove vern rnme ment nt organizations together, all over the world, spend billions of dollars every year on the research and development of anti virus programs. Further millions of dollars are spent every ear, recovering and reconstituting the data lost to viruses.

 

It has been mentioned that website could be considered to be the ?property?. Further, it cannot be denied that viruses, however harmless, cause damage to some extent. Thus the requirement of damage to property is met in the form of alteration or destruction of digital information through viruses. As far as intention to cause damage is concerned, the only defence that the offender who has authored the viruses or other such programme can claim is that his intention was not to cause damage to the specific computers or computer systems affected. However, the offence of  mischief by definition does not require specific intent and therefore the offender cannot escape law for the damage caused. It could, for this reason, be asserted that an author of a computer virus may be held liable for the offence of mischief under Section 425 of the Indian Penal Code. The law dealing with Cyber crimes has now been codified in the I. T. Act, 2000 and Chapter  XI deals with computer crimes and provide for punishments for these offences. Another area of cyber crime is with regard to defamation and the Internet. There are various issues related to Internet Internet defamation defamation.. These include question of jurisdictio jurisdiction n and also questions questions relating to lack of legal awareness amongst people using the Internet. An essential ingredient for Defamation as defined under section 499 of the Indian Penal Code is 'Publication'. The question is what constitutes publication on the net, looms large. Can emails be considered publication when personal correspondence is not. If not, then who can stop an unscrupulo unscrupulous us man from sending defamatory defamatory e-mails to all and sundry sundry via the media of bulk e-mail. And if yes, then where does the liability lie if there is defamatory material  posted on a bulletin board. Is the Internet Service Provider (ISP) liable under section 501 of  the Indian Penal Code, which makes the publisher/p publisher/printer rinter of defamatory defamatory material, the prime offender. If we were to juxtapose the penal law to the present case, the ISP would be held liable but under the Information Technology Act, 2000, the Internet Service Provider has  been exonerated from liability under Section 79 as long as he can prove that the offence/contravention has occurred without his knowledge and that he had exercised due diligence to prevent the commission of such offence/contravention. The key business of the Internet is computer software. The issue of computer software piracy is itself not a new one. However, the issue, which arises out of having computer software on the Internet, is the manner in which piracy is done, the rights and liabilities of various parties involved in the process and the steps taken to curb it. In India, computer software falls under 

 

copyright laws and therefore, the software can be protected under the Copyright Act. The  problem is that the philosophy behind the Internet is freedom of information and freedom to information. In other words, there is no restriction to the information available on the Internet in any form. On the other hand, the philosophy philosophy behind behind intellectual intellectual property property protection protection is to give monopolistic protection to the authors. These two philosophies are in direct conflict with each other. Considering the extent to which the computer programme and communications software are growing in market size and economic value, the nature of protection to be  provided is extremely important.

Cyber squatting as an offence relates to the registration of a domain name by an entity who does not have an inherent right or a similar or identical trade mark registration in it's favor, with the sole view and intention to sell them to the legitimate user in order to earn illegal  profits. In the Bisleri case, the Delhi High Court on a complaint by the proprietors of the TM Bisleri and the domain name Bislerimineralwater.com restrained IT COMPANY from using the domain name Bisleri.com. In another recent judgment passed by the Delhi High court in Yahoo Inc. vs Akash Arora 19 1999 99 PTC PTC 20 201, 1, the the co cour urtt ha hass restra restrain ined ed th thee de defen fenda dant nt from from us usin ing g th thee Doma Domain in na name me yahooindia.com on the ground that it violated the rights of the plaintiff who was the owner of  the domain name yahoo.com which was registered prior in time in 69 countries though not in India. What makes this case a little more interesting and novel is that the defendant after registering the offending domain name had pasted a disclaimer on the forthcoming site saying that their  site was independen independentt and in no way related to yahoo.com. yahoo.com. of the plaintiff's. plaintiff's. It was observed  by Hon'ble Justice M.K. Sharma that Due to the nature of Internet use, defendant's appropriation of the plaintiff's mark as a domain name and home page address couldn't adequately be remedied by a disclaimer. It was also observed that considering the vastness of  the internet and its relatively recent availability to the general public, many internet users are not sophisticated enough to distinguish between the subtle difference in the domain names of  the parties.

 

It is also noteworthy that while deciding this matter the court considered the ratio of Montari Industries case and the Whirlpool case, which have laid down the concept of trans, border  reputation. In Rediff Communications vs Cyberbooth, the defendants were restrained from using the domain name radiff .com as it was deceptively similar to the Plaintiff's registered domain name rediff.com. In Investsmart India Limited vs ICICI & Anr , the defendant had got registered in it's name a domain name investmartindia.com. The plaintiff claimed that the defendant was violating its rights, as they were the registered proprietors of the domain name investsmartindia.com. The application of the plaintiffs for the grant of interim injunction was dismissed in this case  because it was found that the plaintiff's had concealed from the court, the fact that the defendants had registered their domain name prior in time to the plaintiffs. The internet internet and internet related crimes are increasing at an alarming alarming rate. The laws that we are presently trying to fit into the modern scenario, answer some questions but leave twice the number unanswered. The loopholes left by the existing penal provisions make Internet a virtual haven for cyber criminals to carry on their illegal activities unchecked. In all the crimes examined in this chapter, there is one fundamental aspect that poses serious diffi difficu culti lties. es. This This is th thee qu quest estio ion n of ju juri risd sdict ictio ion. n. The The na natu ture re of In Inte tern rnet et is such such th that at geographical and political boundaries have been rendered irrelevant. A person with access to a computer and the Internet might be participating, attempting or planning a criminal act anywhere in the world. The Internet is, in a remote sense, analogous to the High Seas. No one owns it, yet people of  all nationalities use it. This makes the control of cyber crime an international issue. One suggested has been to try and bring cyber crimes under International Crimes, similar to offences such piracy under the Law of the Sea, which may be tried in any country. This is a rather ambitious plan and is unlikely to receive sufficient support from the international community. However, the formulation of an International Model Law on Cyber crime (based on which various countries could legislate and ensure harmony between various territorial laws) could  be one of the more practical approaches. Early steps are underway among the G8 countries to

 

 begin an initiative for a set of global standards for cyber crime. The success of this initiative could go a long way in tightening the screws on cyber criminals from all over